No lawyers allowed?!

I am very disappointed.

Here is why…

Last week, Bill 52 passed 3rd reading in the B.C. Legislature (making it even closer to becoming law).

You may recall that, three weeks ago, I wrote a column about the B.C. Government’s new proposal on how to deal with traffic ticket disputes: Bill 52 – Big Changes Coming.

Bill 52 is completely misguided and may not pass constitutional scrutiny, which could end up costing B.C. taxpayers a lot of money if the process has to be changed.

Possibly more frustrating/disappointing than Bill 52 is Bill 44, which also passed 3rd reading last week. To me, Bill 44 is equally as…misguided.

I encourage you to read Bill 44 – The Civil Resolution and Tribunal Act at the following link: Bill 44.

So, what does Bill 44 propose?

Well, put simply, Bill 44 seeks to create “Civil Resolution Tribunals” that will run side-by-side with B.C. Courts. The Tribunals will have jurisdiction to hear and decide cases that fall within the jurisdiction of B.C. Small Claims Court. It is, according to the B.C. Government, intended to save money.

I understand that this may sound strange, so I’ll put it another way.

At present, if you have a dispute with someone (typically for claims under $25,000), you can go to Small Claims Court. Small Claims Court is much more informal, streamlined, and user-friendly (than traditional court), allowing people to represent themselves (which often occurs). With that said, people are still allowed to hire lawyers. The hearing/trial is presided over by a provincial court judge who is neutral and independent from government. This sounds like a good process, right?

Under Bill 44, parties could (if they consent, for now) have their potential Small Claims case taken away from the court system and heard in front of a Tribunal, a non-judicial group. In this process, the parties must represent themselves; lawyers are not allowed…

At section 20, Bill 44 states that, as its default position, lawyers are not allowed. If you want to hire a lawyer, you have to satisfy the Tribunal that a lawyer is required.

It isn’t hard to imagine that some people will be unfairly advantaged. For instance, some people are more familiar with presenting an argument, such as those people who work in business or insurance. Is this fair? I certainly don’t think so.

Another big problem with Bill 44 is that, in section 9, it specifically excludes the B.C. Government from being sued in this alternative Tribunal process. If this process is so great, then why is the Government specifically excluding itself from it?

It is disheartening that the B.C. Government did NOT consult with those groups who have the most expertise in this area when creating this Bill. As you can imagine, this Bill isn’t well supported (and is opposed) by some of those groups. Consider the media release from the Canadian Bar Association (B.C. Branch): CBA Media Release.

It is also disheartening that the B.C. Government pushed through this Bill (as well as Bill 52) BEFORE hearing the results of a report on B.C.’s shortcomings in the justice system.

For those who don’t know, in February 2012, the B.C. Government appointed a very well respected lawyer, Mr. Geoffrey Cowper, Q.C., to head a critical review (and draft a final report) of B.C. justice system: Justice Review. The Government would then use that report to make changes (and improve our system). The final report will be made to the Government in July 2012.

The Government’s decision to push through Bill 44 begs many questions…

Why create an alternative process in which people are not represented by lawyers and decisions are made by people without judicial training? Why funnel much needed resources away from the current court system and why not address the judge shortage? Why not just ‘tinker’ with the existing Small Claims Court process (if there are problems)? And why is the Government specifically excluded?

If you want to read the ‘debate’ that occurred during 3rd reading of Bill 44, scroll down to [1720] at the following link: Hansard. For the ‘debate’ that occurred during 3rd reading for Bill 52, scroll down to [1930] at the same link.

Whether or not you agree with the changes, I am hopeful that you will think about and consider the changes for yourself (without blindly relying to any particular source). I have done this and I am very disappointed in our Government.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on June 5, 2012: No lawyers allowed.

Thankfully, judges are appointed (and not elected)

In Canada, our judges are appointed, not elected. For that reason, we are very, very lucky.

Some people, however, think that judges should be elected. To those people: you are wrong.

Here is why…

Consider your typical political election; often, there are misrepresentation of facts, evasive answers, and frequent photo-ops. The message is often lost and elections often degrade into advertising campaigns.

I would like to think that those who are elected are the best people for the job; but, I am not always so sure.

For judges, this is system that exists in the United States of America. Hopeful judges have to campaign and their previous decisions are then scrutinized by the public, who, by large, have done little or no research to actually question those decisions.

So, it isn’t surprising that judges, like politicians, make decisions that they think will affect their chances of re-election.

This happens in politics all the time.

Consider the Federal Conservative’s decisions to create harsher sentences for crimes, despite argument and evidence that harsher sentences do NOT lower or deter crime. So, why are they doing it then? Answer: votes.

In America, when judges are elected, they, too, make decisions that will help them get re-elected into office. For instance, American judges often levy very strict (and often unjustified) sentences on offenders, so that they don’t appear lenient to the voting public.

I do not envy Americans for having that system.

For an illustration of what it is like to have elected judges, consider the following New York Times article from 2006, describing a system in which nearly three quarters of judges (who were elected) are not lawyers (and have little or no legal training/knowledge): In Tiny Courts of N.Y., Abuses of Law and Power.

Of course, the article’s material isn’t representative of all of America; but, it does provide a glimpse into the problem of using elections to find judges (i.e. that the best people for the job aren’t always elected).

In Canada, the process is very different. I will summarize it briefly.

First, lawyers who apply to become a judge must have been a lawyer for at least 10 years.

Screening committees then review the applicants based on several factors and make recommendations to the government (for appointment to the bench).

The factors that are considered include a keen intellect, proficiency in the law and in ethics, the ability to listen, the capacity to exercise sound judgment, a sense of consideration for others, patience, and a willingness to learn. An applicant’s courtesy, honesty, and humility are also considered, as well as their dedication to the public good, often demonstrated by pro bono work.

Selection committees will also interview lawyers and judges who have worked with or against the applicant. The committees are interested in the applicant’s interpersonal skills and whether or not an applicant engaged in ‘sharp’ conduct in his/her legal career.

If the applicant passes all the hurdles, then the government chooses among those applicants who have been recommended by the committees.

Also know that there are more applicants than openings (so the competition is fierce).

In P.E.I., there are openings approximately every 10 years. For federal court appointments across Canada, there may be 500 applicants a year, but only 50 to 60 appointments are made.

Once appointed, judges cannot easily be removed and are free to make decisions without influence from any powerful outside sources. Their decisions are reviewable by appellate courts, rather than the voting public.

I understand that some people think that judges’ decisions should be reviewable by the voting public, which would occur if judges were elected.

However, to do so would mean that judges’ decisions would pander to public opinion.

If judges pandered to public opinion, their decisions would be based on popularity, rather than legal principles. Judges would be hesitant to make correct (and unpopular) decisions, such as those that impact minority groups/interests.

It isn’t surprising that people sometimes get frustrated with a judge’s decision. When a judge makes a decision, one party will always be disappointed.

But, it is surprising, however, that the media sometimes does a poor job in accurately reporting the facts of a judge’s decision. This is a ‘special’ pet peeve of mine (to say it lightly).

My advice: get all the facts of a case before you criticize a judge’s decision. And be thankful that judges are appointed, not elected.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on May 29, 2012: Thankfully, judges are appointed.

Traffic tickets: big changes coming

There may be big changes coming to B.C.

Bill 52: Motor Vehicle Amendment Act received second reading in the B.C. Legislature last week and, surprisingly, there hasn’t been much media coverage on it.

Don’t let the lack of media attention stop you: I encourage you to read it. You can find it at the following link: Bill 52.

 

One of the biggest proposed changes in Bill 52 is an overhaul of the current process that is used to dispute traffic tickets.

Put simply, the proposed law takes traffic ticket disputes out of the Courts and creates administrative tribunals to deal with the disputes.

Currently, if you receive a traffic ticket from a police officer, you may choose to dispute the ticket and have the matter heard in Court. In Court, your case will be heard before a judicial figure (either a Judicial Justice of the Peace or a Provincial Court Judge) and the police officer has to present his/her case (that you committed a traffic offence). You are also given the opportunity to cross-examine the officer (on their memories and notes).

Under the proposed new law, a police officer gives you a ‘driving notice’. After that, you may choose to dispute it; but, you don’t go to Court. Instead, you will proceed to a ‘Resolution Conference’ and present your case in front of the ‘Driving Notice Review Board’ (an administrative tribunal). At this Resolution Conference, you will not have the opportunity to face and cross-examine your accuser (the police officer); the police officer does not attend. A Resolution Conference may take place over the telephone, in writing, or in person.

The B.C. government says the new changes will free up court time (reducing backlog) and police resources (i.e. police will no longer have to attend Court for traffic matters).

Reducing Court backlog is a great and laudable goal. But, are these proposed changes the best way to accomplish it?

Remember that we are fortunate enough to live in a country where we are innocent until proven guilty; this applies as much to traffic offences as it does to Criminal Code offences.

Police officers are humans and, of course, are capable of making errors. Sometimes, those errors translate into issuing tickets that are not appropriate.

Now consider: without police attending your Resolution Conference (to discuss/defend their memories and procedures), will you have a greater or lesser chance of being found guilty?

Also consider that the Courts are backlogged because they have been under-funded. As I discussed in a previous column, Justice system in crisis, the B.C. government has, over many years, reduced Court budgets and has not addressed the shortage of judges.

So, let me get this straight: rather than restoring budgets and putting money into the justice system, the plan is to create an alternative process that does not allow for the same procedural protections to those accused of motor vehicle offences? Alight then.

There are more proposed changes in Bill 52; some about how ICBC can charge additional premiums. I encourage you to read about it.

And don’t let me persuade you into believing that the law is bad: you may like the changes. Just think about it and research it for yourself.

And don’t blindly have confidence in your government to always pass good laws.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on May 15, 2012: Traffic tickets big changes coming.

Lack of court funding benefits criminal offenders

People who are charged with criminal offences are entitled to be tried within a reasonable time, as required by section 11(b) of the Charter. If they aren’t, those alleged offenders can be ‘let off’ without standing trial, a situation that should have everyone concerned (and angry at their elected officials…and not at the courts).

To start, it is unfair and unreasonable for a person to have pending criminal charges for years – many, many years.

Imagine that you are charged with a criminal offence: it can happen to anyone. Maybe you forgot to pay for all your groceries when you left the supermarket and are charged with theft. Or, maybe you had a few drinks and, rather than calling a cab, you tried to sleep it off in your car. While sleeping, a police officer finds you in the driver seat and you’re charged with drunk driving.

Consider that if your criminal matter is pending for several years, you aren’t able to plan for family vacations or work trips, as a criminal record can prevent travel. Also, you’ll likely avoid making big purchases because, if convicted, you might go to jail or lose your job. In essence, you’re in a constant state of stress and limbo.

One of the leading cases on this issue is R. v. Askov, [1990] 2 S.C.R. 1199. In that case, three people were charged with conspiracy to commit extortion, among other related offences. They were charged in late 1983 and the trial was eventually scheduled to occur in late 1986. The delay was not attributable to any misconduct on the part of the Crown (I.e. not their fault). Instead, much of the delay was attributable to institutional problems, attributable to lack of funding. In the end, the charges against the individuals were stayed (dismissed) because the trial had been unreasonably delayed. After the case, thousands of other alleged offenders were ‘let off’ in Ontario for the same reason.

Alleged offenders are not just ‘let off’ for delay in Ontario – it happens in B.C., too.

In R. v. Hammer, 2011 BCPC 0234, Associate Chief Judge Brecknell granted a stay of proceedings to a defendant who was found guilty (in Prince George) of possessing cocaine for the purpose of trafficking. From the date that the individual was charged until the conclusion of the trial, 42.5 months had passed, 21.5 months were attributable to limitations on institutional resources (or, in other words, to lack of funding).

This isn’t in isolated incident.

Associate Chief Judge Brecknell noted that 59% of the pending adult criminal cases in B.C. are already over the completion guideline/standard that the court has set for itself. So, don’t be surprised if, in the near future, several alleged offenders are ‘let off’ without standing trial.

Some people blame the judges for failing in get trials heard within a reasonable time. But, the only party to blame is the Provincial Government.

Judges do not control the availability of court facilities/rooms and they do not control staffing resources such as sheriffs or clerks. The Provincial Government control these matters. The Government is also responsible for the appointment of a sufficient number of judges to hear cases within a reasonable time. For your information, the B.C. provincial court is the only provincial court in Canada that has fewer judges in 2011 than it did in 2005.

It is totally unacceptable that those who are alleged to have committed serious offences are never bought to trial/justice simply because of unduly long delays attributable to budget cuts and funding issues.

Now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on March 20, 2012: Lack of funding benefits offenders.

Our justice system is in crisis!

Imagine being hurt, either in a car crash or in an assault. In the case of a car crash, you’d expect that you could sue the negligent driver and promptly get compensation for your losses. In the case of an assault, you’d expect that Crown Counsel could prosecute the offender. Those assumptions are reasonable. But, given budget cutbacks, don’t be surprised if things change…

In November 2011, one of our most learned, Chief Justice Robert J. Bauman of the Supreme Court of British Columbia, spoke about the dismantling of B.C.’s legal system. This column echoes Chief Justice Bauman’s words.

For some background, the judicial branch is one of the three branches of government, along with the legislative and executive branches, which are made up of, put simply, those bureaucrats and elected officials who debate, make, and administer laws and other government business. The judicial branch is comprised of the Canadian courts, deciding cases and interpreting laws, ensuring that justice is done.

In theory, all three sectors are equal. In reality, though, the judicial branch depends on the other branches for funding. Without proper funding, the justice system cannot adequately function.

The consequences of inadequate funding are serious and can be seen by looking at American courts, which have seen significant budget cuts.

In California, budget cuts of $350 million from county trial courts have resulted in almost 50% of its county trial courts becoming insolvent. The National Centre of State Courts reported that 3200 courthouses in America are eroded or deficient. An Ohio courthouse stopped accepting new cases because it could not afford to buy paper. The state of New Hampshire has suspended all civil cases for one year to deal with backlog, made worse by inadequate funding.

B.C. isn’t far behind.

Between 2008 and fiscal 2012/2013, the Court Services’ budget reduced by 10 per cent. Among the results is less court staff, which has terrible echoing effects.

Court clerks maintain the operation of a courtroom on behalf of the judge and perform several invaluable functions. If there are no court clerks, then courtrooms cannot operate and scheduled matters are adjourned.

To assist with the lack of court clerks, registry staff are juggled into courtrooms to work as clerks. This creates additional problems, though, as registries are also inadequately staffed.

Registry staff are responsible for several invaluable functions, including accepting and managing documents, processing orders, and assisting citizens with questions. In the last several years, shortages in registries have resulted in considerable delay, sometimes over six months, in processing orders. In the case of child custody matters, six months can feel like an eternity.

Also, in June 2011, the B.C. government cut approximately 30 sheriff positions, jeopardizing the safety and security of witnesses, lawyers, the public, and court staff/officials. Although the cuts were later reconsidered and sheriffs were restored, several criminal matters had to be adjourned, adding to the backlog of cases.

There is also a shortage of judges as appointments to the bench have not kept pace with retirements/departures. For example, in the Provincial Court, there has been a loss of more than 17 judges from 2005 to 2010, worsening the backlog, especially for criminal cases.

What is the result of a backlog of cases? Right now, in the case of civil lawsuits, such as personal injury or business-related lawsuits, it can mean significant delays (i.e. many years) in getting your case heard and attaining justice. In the case of criminal law, alleged offenders can be ‘let off’ without standing trial, a scenario which should have everyone concerned and a topic that I will discuss in greater detail next week.

The court/justice system is essential to our democratic society and efforts to balance the budget can never translate into taking money away from the courts. There is no fat to trim and any budget cuts slice into bone.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on March 13, 2012: Justice system in crisis.

Parole explained: what is it?

This column is intended to shed some light on parole, an often misunderstood topic.

First of all, parole refers to the early release (from jail) of a prisoner into a community, subject to continued monitoring and conditions (upon that release). The prisoner has to spend a particular amount of time in jail before they can apply for parole; the particular amount of time spent in jail depends on their offence.

 

 

The Parole Board of Canada, an administrative tribunal, has the authority to grant, deny, and revoke parole. It receives its authority from the Corrections and Conditional Release Act, which provides the rules governing parole. The Criminal Code also contains rules governing parole (i.e. sections 743.6 and 745).

So, why are prisoners even given parole/early release? Why not just keep them in jail? There are many reasons, but, in short, early release is beneficial for both the offender and the public. Releasing an offender on conditions and subjecting them to continued monitoring, as well as assisting with their reintegration, assists the offender in becoming a successful, contributing member of the community.

So, how often do people commit offences while on parole? More than 70% of offenders who were released on parole successfully completed their sentences. Approximately 16% had their parole revoked because they breached their conditions and just more than 10% had their parole revoked because they committed a new offence.

Obviously, some people commit another offence while on parole. But, the number is small and the alternative to parole is simply cutting all prisoners loose upon the conclusion of their sentence (with no monitoring, conditions, or assistance).

I can already hear some people saying, “But, the offender isn’t serving their whole sentence!” That position is understandable, but misguided. The offender is still serving their sentence; they are merely serving it partially in the community. They are subject to conditions and monitoring, akin to punishment. If the offender breaches the conditions, they can be hauled back into jail.

What does the Parole Board consider when deciding whether or not to grant parole? First and foremost is the protection of the public (despite some common sentiment). Other considerations are the offender’s ability to reintegrate into society and the offender’s rehabilitation efforts/progress. Also considered are the offender’s criminal history, their institutional behaviour, and their proposed release plan.

When can prisoners actually apply for parole? Well, this depends on the offender’s previous conviction/offence. For the most part, prisoners can apply for parole after 1/3 of their sentence has been served. For life sentences for crimes other than murder, offenders can generally apply for parole after 7 years.

For first degree murder, which comes with a life sentence, the offender is not entitled to parole for 25 years. For second degree murder, which also has a life sentence, there is a minimum of 10 years, though it is regularly much higher than that in practice.

Parole eligibility can also be delayed. The sentencing judge can delay parole eligibility if the offence was brutal, the offender requires additional punishment, or the offence related to terrorism or organized crime.

So, how many people are actually paroled? Approximately 40-45% of offenders are paroled between 1/3 and 2/3 of their sentence. And for your comfort, the majority of those who are guilty of killing another person are not paroled on their parole eligibility date.

I can understand people’s anger when prisoners are paroled. However, anger and emotion are terrible justifications in sentencing/criminal law.

It also needs to be remembered that the overwhelming majority of prisoners who are given early release are not violent, murderous people. If someone is a danger to the public, then I have faith that they will remain locked up (and a life sentence will mean just that: life in jail). Likewise, I’d wager that Robert Pickton will never be paroled, even if he lives for another 100 years.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on February 14, 2012: Parole explained.

Prevent crime before it occurs

Last week, I discussed three programs/initiatives that combat the root causes of crime: 1) Prolific Offender Management Program, 2) Vancouver’s Drug Treatment Court Program, and 3) Vancouver’s Downtown Community Court.

While these programs/initiatives are immensely beneficial, they are nevertheless ‘reactive’, meaning they address crime (and the causes of it) AFTER the crime has occurred. To adequately address crime (and maximize societal benefits), we need to ‘proactively’ address crime. In other words, we need to prevent crime (and its causes) BEFORE it occurs.

Two theories of crime reduction/prevention, which attempt to address crime before it occurs, are as follows:

  1. Social Development Theory; and
  2. Environmental Development Theory.

Social Development Theory supports programs/initiatives that attempt to address the social/psychological/economic root causes of crime. As stated last week, the most common root causes of crime are poverty, drug/alcohol addiction, poor employability, racism/discrimination, mental illness, and family violence. In addition, teen pregnancy, school problems, poor pre-natal care, and poor physical/mental growth are also factors that lead to crime. So, in an effort to reduce the presence of these factors, Social Development Theory asserts that people should be given opportunities to stay healthy, independent, respectful, and educated.

At present, there are programs which employ the Social Development Theory of crime reduction/prevention, whether or not it is intentional. For example, the secondary school lunch programs, which provide free meals to impoverished children, address the physical and mental growth of individuals. Also, the payment of income assistance attempts to address poverty and lack of employability.

However, while there are programs/initiatives, there is much work that needs to be done. As an illustration, income inequality has increased in Canada since the 1990s. The number of middle-income families has shrunk and the number of low and high income families has increased, thereby creating a large gap between the rich and the poor; the largest gaps being in Toronto and in Vancouver. Also, in 2001, 18.4% of children in Canada were living in poverty. More specifically, in 2001, 39% of children from two-parent recent immigrant families were living in poverty, which is up from 22% in 1980. Similarly, just less than 50% of children living in single-parent families were living in poverty. Such inequality and child poverty is criminogenic.

In contrast, the Environmental Development Theory of crime prevention focuses on environmental conditions and designs which proactively reduce or prevent criminal behaviour. Put another way, it proposes that, with effective design, use, or maintenance of property, there can be a reduction in crime. The premise behind this theory is that crime is contextual and opportunistic; if an environment is unsuitable for crime, crime will decrease.

Under this theory, there are three general principles. First, designs (for buildings and cities) should be made to maximize surveillance, limit hiding places, maximize visibility, and maximize a flow of traffic. Second, people should be encouraged to take ownership over their surroundings as territoriality is thought to prevent crime. Third, built structures should be maintained and enhanced to encourage people to respect their surroundings.

This method of crime prevention has been used successfully. To illustrate, the mining community of Tumbler Ridge in northern British Columbia used Environmental Design Theory to prevent crime. When constructing the new city, the city planners ensured that there was a good flow of foot traffic and that there were few areas with limited visual access. As a result, criminal activity was ultimately discouraged. As another example of Environmental Design Theory, police in the U.K. credit their abundance of cameras to capturing the transit bombers in 2005.

Whichever theory you support, I hope that we can agree that crime (and its causes) should be addressed before it occurs. I also hope that we can agree that the current/future governments should use their resources (and considerably so) on proactive strategies, rather than on simply “tough on crime” measures, which are largely unproven and reactionary.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought. 

Originally posted on Castanet.net on January 3, 2012: Prevent crime before it occurs.

How do we prevent crime?

Crime hurts us: it disproportionately affects our insurance, health care, and social services. Violent crime also tears the fabric of our society and attacks our collective sense of wellbeing and safety. So, how do we stop it?

Last week, I explained that the ‘severity of punishment’ does not decrease crime; rather, it is the ‘certainty’ of being caught/punished that decreases crime. But, other than ‘certainty of punishment’, are there other methods that can be used? To answer that question, we need to identify the root causes of crime.

For the most part, the root causes of crime are:

  1. poverty;
  2. drug/alcohol addiction;
  3. poor employability;
  4. racism/discrimination;
  5. mental illness; and
  6. family violence.

To illustrate, Aboriginals are overrepresented in the criminal justice system. While Aboriginals only make up 3% of the general population, they represent approximately 20% of Canada’s prison population. Aboriginals also have double the recidivism rate (rate of re-offending) of non-Aboriginals. The root cause of this overrepresentation is thought to be attributable to the effect of residential schools on survivors and subsequent generations, poverty, drug/alcohol addiction, and racism/discrimination. Also, as another illustration, consider that single mothers, individuals presumably with less financial means, as well as women who are survivors of (family) violence are both disproportionately overrepresented as offenders in the criminal justice system.

Now that we have identified the root causes of crime, we can make efforts to fix those causes, which will lead to a decrease in crime. Sound like a lofty goal? Well, it is – but, there are multiple programs that address (and help with) these root causes. Three such programs are as follows:

Prolific Offender Management Program: This Program, implemented in several B.C. communities, arose out of the recognition that 50% of the crime that occurs in B.C. is perpetrated by 10% of the offenders. These ‘prolific offenders’ have extensive criminal records, substance abuse, mental disorders, and/or a lack of job or life skills. The Program brings together workers from housing and social services, income assistance, psychiatric services, law enforcement, and other community resources to help with the underlying needs of the prolific offenders. In order to assist with the root causes of crime, the Program refers offenders (after attending court) for drug treatment, job/housing programs, close police supervision, and/or mental health therapy. In some of the communities where the Program has been used, there has been a 10-40% drop in the general crime rate.

Vancouver’s Drug Treatment Court Program: As the name implies, this Program is aimed at offenders with drug addiction problems. Once admitted to the Program (and after attending court), offenders engage in social activities, counselling, and judicial progress reviews. Those who remain in and graduate from the Program have an increase in self-esteem and self-control, have a lower rate of subsequent drug use, and have a lower rate of re-offending. The Vancouver Coastal Health Authority is also involved in the Program and often addresses the physical/mental health of the participants/offenders.

Vancouver’s Downtown Community Court: Opening in 2008, this Court was the first of its kind in Canada. This Court is built on the premise that street crime cannot be addressed by the justice system alone; it requires the cooperation of social and health organizations to address the root causes of crime. During the Court’s process, information is gained about the offender’s needs and circumstances. After attending Court, the offender may attend drug/health treatment or receive a referral for housing, health care, or income assistance. Also, some businesses/organizations lend assistance and some offenders are taught new job skills and gain work experience.

To be clear, I am not suggesting the prison should not be used in some circumstances. I am merely suggesting that programs and laws directed at addressing the root causes of crime, rather than simply creating harsher punishments, show a lot of promise (and should be given plenty of support). The benefits are more than just a reduced crime rate; a better Canada will also emerge – one with less discrimination, poverty, and illness.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought. 

Originally posted on Castanet.net on December 27, 2011: How to prevent crime.

Do severe punishments deter crime?

It is seemingly public opinion that severe and harsh sentences are required to prevent future crime. Almost every week, I hear someone say, “If penalties were harsh(er), people wouldn’t commit crimes.” This concept of affecting behaviour with punishment is referred to, in sentencing law, as ‘deterrence’ and has been a purpose in sentencing law for 100’s of years.

Within ‘deterrence’, there are two separate, but related, concepts:

  1. Specific deterrence:This is focused on the individual offender. The idea is that if an individual is punished (severely/sufficiently), then the consequences of that individual’s actions will be instilled and that individual will be discouraged from committing future criminal acts.
  2. General deterrence: This is focused on the general population. The idea is that if punishments are public and well-known, then the rate of crime will decrease, as other individuals, who see/hear about the punishments, will be deterred from committing crimes themselves.

Deterrence is based on the premise that humans are ‘rational’ and weigh the advantages and disadvantages of their actions. As a result, the pain of punishment must be equal to or more than the pleasure/benefits of crime in order to deter the public/individual from choosing to commit a crime.

However, does deterrence actually work? Short answer: no (with some shades of grey).

There is a growing acceptance that people commit crimes for reasons other than some rational decision-making process; people also commit crimes for psychological, social, or economic reasons. At least for me, I am sceptical (which is an understatement) that people think to themselves, “I choose to assault this person because the penalty does not currently outweigh the benefits of assaulting this person”. I am more inclined to believe that an assault would occur because of some psychological/social reason.

Also, if punishment actually deters people from re-offending, then the imposition of (arguably severe) penalties would prevent those same people from committing future crime. However, in 1999, there was an analysis of over 50 studies (involving over 336,000 offenders), which showed that prison sentences do not decrease recidivism (rate of re-offending); if anything, prison sentences actually produce an increase in recidivism; discrediting the idea of specific deterrence.

How about the deterrent effect on the general population? Does punishment of other offenders really deter the public from committing crimes themselves? Well, there isn’t a clear answer. There have been studies done on this issue, but there is no convincing evidence, either way, on overall (general) deterrent effect.

So, what do we know? What has actually been shown to be effective? Well, it has been found that the deterrent effect exists more with the certainty of punishment (probability of being caught) than the severity of punishment. So, if we want to reduce crime, measures should be taken to ensure that more offenders are caught (and subsequently prosecuted), rather than making amendments to the Criminal Code, creating harsher sentences. Besides, how many people have actually read the Criminal Code and know the penalties? Probably not many.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought. 

Originally posted on Castanet.net on December 20, 2011: Do severe punishments deter crime?

Gruesome history of sentencing

If you have been paying attention to the news, you have heard about the proposed changes to Canada’s sentencing/criminal laws, namely Bill C-10 – the federal government’s Safer Streets and Communities Act. Put simply, the Bill proposes a heavier reliance on imprisonment. Many, including the federal Conservative government, support the changes, and many, including the provincial governments of Quebec, Ontario, and Newfoundland, as well as the Canadian Bar Association, are strongly against it.

Rather than discussing the Bill, here is a brief history of sentencing, which may shed some additional light on the current debate:

In ancient communities, such as in Greece, Rome, and England, the common forms of punishment (which, at the time, was akin to sentencing) for crimes were gruesome. They included physical mutilation, like cutting off a tongue, an ear, or a hand. They also included forced labour, such as working in a salt mine or in the galley of a boat, or being forced into gladiatorial combat. Transportation to foreign colonies and capital punishment were also used. By 1800, capital punishment was available in England for as many as 200 offences and took many forms, including being stoned, thrown off a cliff, burned at the stake, buried alive, or quartered (chopped into four pieces).

 

It was also around 1800 that capital punishment and transportation were becoming less popular and penitentiaries began to arise. These were designed for long-term imprisonment. Prisoners were required to work and pray, and it was hoped that, in solitude, they would reflect upon their poor choices. Before this, prisons were really only used to hold people awaiting trial or execution.

In the beginning of the 19th century, punishments (or sentences) from crimes in Canada were similar to those in England; but, just as in England, changes were happening. At the beginning of the 19th century, fines were introduced and imprisonment began to replace hard labour. In 1830, branding and public flogging (whipping or caning) were largely abolished. In 1835, the first penitentiary in Canada was opened in Kingston, Ontario. Capital punishment was also losing favour and, in 1833, capital punishment was restricted, by the Upper Canada legislature, to nine serious crimes, including treason, murder, rape, buggery, bestiality, robbery, arson, and burglary. The last hanging to occur in Canada was in 1962 at Toronto’s Don Jail and, in 1975, capital punishment was officially abolished, with some exceptions remaining for several years afterward for the National Defence Act.

Throughout the 20th century, imprisonment was the dominant sentencing response to crime in Canada, but fines and probation were slowly gaining support. In the late 20th century, imprisonment was losing favour as there was much debate about its over-use and its ineffectiveness in preventing future harm/crime. There was also a gradual push towards more rehabilitative and restorative models of sentencing, rather than some punishment-type model, seeking an eye-for-an-eye. It is for these reasons that many current sentences being levied do not include imprisonment (but only when imprisonment is not appropriate) and, instead, seek to rehabilitate offenders and repair the harm caused to the community and to the victims. Such rehabilitative and reparative sentences have been, and continue to be, successful in several European countries.

I wish I could go on, but the history of sentencing is a huge topic; I am simply unable to fully explore it here. But, it can be seen that sentencing law has evolved over hundreds of years and it would appear that the federal Conservative government wants to explore an earlier time when imprisonment was thought to be more effective.

I encourage everyone to do his/her own research and come to their own conclusions. But, for me, I agree with those who are against the changes, as Canada has some of the safest communities in the world and an already decreasing crime rate.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought. 

Originally posted on Castanet.net on December 13, 2011: Gruesome history of sentencing.